Government Shutdown: Law Enforcement Exceptions

I don't believe there will be a government shut-down on October 1. I think the Republicans will cave before then and a continuing resolution will be passed.

But, if there was, what would it mean for the federal courts and law enforcement? Would the DEA have to shut down wiretaps and put pending investigations on hold? Would it mean a suspension of DEA and FBI busts? Would DOJ be unable to prosecute cases? Would the NSA have to suspend its electronic surveillance programs?

According to the 2011 DOJ contingency plan, the answer to all of those questions is "No." All services essential for national security and public safety—including law enforcement are safe. The DEA, NSA, FBI, ATF, US Marshals and Bureau of Prisons will be open for business as usual. [More...]

According to DOJ, 80.2% of its employees are excepted from any funding hiatus. As a result, it will be business as usual.

Criminal litigation will continue without interruption as an activity essential to the safety of human life and the protection of property.

The Department of Justice has determined that 94,261 of the 117,579 employees (80.2 percent) on-board at the Department of Justice (as of the pay period ending February 12, 2011) would be excepted from furlough because: they must be retained to protect life and property (for example, law enforcement); their compensation is financed by a resource other than annual appropriations; there is express authority for them to continue their work during a lapse; authority for them to continue their work arises by necessary implication; they are needed to conduct an orderly shutdown; or because they are Presidential appointees remaining at work by statute.

Their compensation is financed by a resource other than annual appropriations;

They are necessary to perform activities expressly authorized by law;

They are necessary to perform activities necessarily implied by law;

They are necessary to the discharge of the President's constitutional duties and powers;

They are necessary to protect life and property.

Some numbers:

National Security Division: 229 of 307 employees on-board are excepted.

U.S. Attorneys: 6,300 of 12,244 employees are excepted. This includes the authorized positions for the 93 Presidentially Appointed U.S. Attorneys, which are not subject to furlough by statute, and another 360 employees funded from resources unaffected by the lapse in appropriations. The excepted employees are needed to address ongoing criminal matters and civil matters of urgency throughout the Nation. Criminal litigation will continue without interruption as an activity essential to the safety of human life and the protection of property.

U.S. Marshals Service (USMS): 5,155 of 5,691 employees on-board are excepted, including the authorized positions for the Presidentially Appointed Director and the 94 U.S. Marshals, which are not subject to furlough by statute. A total of 100 percent of USMS field personnel and an overall total of 90.6 percent of USMS personnel are excepted.

Federal Bureau of Investigation (FBI): 30,208 of 35,267 employees on-board are excepted. These include the authorized position for the Presidentially Appointed Director, which is not subject to furlough by statute, plus 2,057 other employees funded from resources unaffected by a lapse in appropriations. A total of 100 percent of FBI field personnel and an overall total of 85.7 percent of FBI personnel are excepted.

At FBI headquarters, a total of 59 percent of staff are excepted, including 90 percent of the agents, 88 percent of intelligence analysts, and approximately 49 percent of other support personnel are considered excepted to provide direction and investigative support to all field operations and excepted headquarters functions. This includes 63 percent of the Science and Technology Branch that encompasses the Criminal Justice Information Services Division, which provides fingerprint identification services to criminal and national security investigations, and the Laboratory Division. Personnel in the other branches and divisions would be reduced to the following levels: Criminal Cyber Response and Services Branch, which includes the Critical Incident Response Group (80 percent); Human Resources Branch (38 percent); National Security Branch (83 percent); Information and Technology Branch (27 percent); and other Divisions and Executive Offices (34 percent).

Drug Enforcement Administration (DEA): 7,437 of 8,842 employees on-board are excepted, including the authorized position for the Presidentially Appointed Administrator, which is not subject to furlough by statute. A total of 92 percent of DEA field personnel and an overall total of 84.1 percent of DEA personnel are excepted. All agents in DEA field organizations are excepted from furlough because they support active counternarcotics investigations. This encompasses 21 domestic divisions, 7 regional foreign divisions, critical tactical support groups including the El Paso Intelligence Center and the Special Operations Division, forensic sciences, and technical surveillance support. DEA investigations need to continue uninterrupted so that cases are not compromised and the health and safety of the American public is not placed at risk.

In addition, approximately 50 percent of headquarters personnel are critical to the support of agents actively engaged in investigative actions in the field – this support includes agency direction and priorities, legal support, integrity assurance and oversight of investigations, and critical support of emergency field functions, such as coordination of joint efforts involving other federal, state, local and foreign agencies; 24/7 tactical Command Center, tactical analytical support to investigations, programs and operations worldwide; as well as worldwide support in the areas of financial management, contract oversight, personnel, and basic training. Headquarters support will be maintained only to the extent necessary to support essential operations.

DEA Diversion Control Fee Account (DCFA): All of the 1,046 employees onboard are excepted since these positions are fully fee funded; therefore, all drug diversion control activities will continue. These activities include preventing, detecting, and investigating the diversion of controlled substances from legitimate channels, while ensuring an adequate and uninterrupted supply of controlled substances to meet legitimate needs.

Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF): 4,206 of 5,117 employees on-board are excepted, including the authorized position for the Presidentially Appointed Director, which is not subject to furlough by statute. A total of 92.1 percent of ATF field personnel and an overall total of 82.2 percent of ATF personnel are excepted. All agents in ATF’s 25 field divisions are considered excepted from furlough to conduct the full range of criminal investigations in the firearms, arson, explosives, alcohol and tobacco program areas

Bureau of Prisons (BOP): 34,187 of 35,522 employees on-board or 96.2 percent are excepted. These employees’ salaries are paid from BOP’s Salaries and Expenses Account. All staff at the 116 Federal prisons, including Public Health Service (PHS) Officers necessary to provide medical care of inmates, are considered excepted since they have direct daily inmate custody responsibilities.

The federal courts have enough funds to keep running for about 10 days to 2 weeks. While prosecutors may be available since they are excepted, what about defense counsel? Are Assistant Federal Defenders and court-appointed counsel considered necessary? If not, how can litigation continue? How many defendants would get their cases dismissed on speedy trial grounds?
I'm sure there's an exception to prevent such relief, but I haven't looked into it yet.

Another less consequential but interesting issue. What happens to Government websites? Can they continue to operate? The OMB says some, like the IRS, can continue, but not others.

Q3: What is the guidance on keeping Government websites up during a lapse in appropriations if the costs of maintaining the website are funded by a lapsed appropriations source?

A3: ....The mere benefit of continued access by the public to information about the agency's activities would not warrant the retention of personnel or the obligation of funds to maintain (or update) the agency's website during such a lapse.

However, if maintenance of the website is necessary to avoid significant damage to the execution of authorized or excepted activities (e.g., maintenance of the IRS website may be necessary to allow for tax filings and tax collection, which are activities that continue during an appropriations lapse), then the website should remain operational even if its costs are funded through appropriations that have lapsed. If it becomes necessary to incur obligations to ensure that a website remains available in support of excepted activities, it should be maintained at the lowest possible level. For example, in the IRS case above, the IRS website would remain active, but the entire Treasury Department website would not, absent a separate justification or a determination that the two sites cannot not feasibly be operated separately.

I wonder how many Americans concur with the OMB and DOJ's assessment of what is necessary to protect human life. I know I don't.